tag:blogger.com,1999:blog-17664472.post3207757938824188791..comments2016-11-13T16:09:32.710+05:30Comments on SPICY IP: Samsung at the Supreme Court: Nationalising Exhaustion?Shamnad Basheerhttp://www.blogger.com/profile/07152989743112178836noreply@blogger.comBlogger10125tag:blogger.com,1999:blog-17664472.post-7164410899011891162013-01-29T21:09:41.770+05:302013-01-29T21:09:41.770+05:30Hi Nataraj,
Sorry that I couldnt respond earlier....Hi Nataraj,<br /><br />Sorry that I couldnt respond earlier. AMC does raise some interesting issues. But speaking from a strictly technical standpoint, should the existence of an AMC implicate exhaustion at all? The AMC and related warranties are not available if the &quot;good&quot; in question transfers hands in a way not envisaged by the initial owner/licensee who offered the warranty in the first place. But why should this influence exhaustion. In other words, exhaustion would dictate that there is no bar on transferring the said good; notwithstanding the fact that the warranty guarantee may not transfer. Or am I missing something here?Shamnad Basheerhttp://www.blogger.com/profile/07152989743112178836noreply@blogger.comtag:blogger.com,1999:blog-17664472.post-6111647595887018992013-01-26T22:00:57.918+05:302013-01-26T22:00:57.918+05:30Hi Shamnad,
Still wondering on this point:
Esse...Hi Shamnad, <br /><br />Still wondering on this point:<br /><br />Essentially, international exhaustion gives the re-seller the right to freely sell at any price, whereas national exhaustion lets the trademark owner regulate the re-seller&#39;s price.<br />Why should trademark law get into these questions?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-17664472.post-54946395164360705342013-01-25T14:30:49.179+05:302013-01-25T14:30:49.179+05:30Dear Shamnad,
Anon @8.01 pm was me...
The quest...Dear Shamnad,<br /><br />Anon @8.01 pm was me... <br /><br />The question of an AMC related issue arose simply because, I guess, I spent too much time thinking about this :-).<br /><br />Practically all vendors of branded products persist in their attempts to get you as a purchaser to sign an AMC, and end with dire warnings that any repairs in the absence of an AMC, by any but an authorised outlet would render the warranty void. <br /><br />In a situation like this (which frankly is to coin a term, a &quot;retail reality&quot;, would I, being a customer, not be empowered to rely on exhaustion of all IP rights when my refusal to sign an AMC (annual maintenance contract - which includes an extension of warranty on some parts), and the consequent admonition by the vendor of loss of warranty, also amounts to a loss of IP rights. Simply put, the purpose of IP (whether patent/TM/design) is primarily also tied down to the quality of the product and a warranty as to its origin. At least, in the area of TM, where the value of the right is a significant function of the goodwill. The right of quality would also include a warranty that what I have bought will not fall apart on me. If this proposition is accepted, then an absence of an AMC, if accompanied by a denial of warranty rights by the manufacturer, should also act as a waiver of IP rights!! Or is my though process too far fetched!!!!!<br /><br />NatarajAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-17664472.post-27864094022869986262013-01-25T07:39:19.244+05:302013-01-25T07:39:19.244+05:30Dear Anon @8.01 am.
I&#39;ve just responded to a...Dear Anon @8.01 am. <br /><br />I&#39;ve just responded to a similar query from Nataraj..Hope this answers your query as well...ThanksShamnad Basheerhttp://www.blogger.com/profile/07152989743112178836noreply@blogger.comtag:blogger.com,1999:blog-17664472.post-55340803470966382852013-01-25T07:37:38.993+05:302013-01-25T07:37:38.993+05:30Hi Nataraj,
Great questions.
Most garage sales w...Hi Nataraj,<br /><br />Great questions.<br /><br />Most garage sales would be safe in my view, since they implicate only national exhaustion...which is permitted by most IP regimes.... And even if they were not covered, you are absolutely right--would be tough to enforce them. <br /><br />I guess repairs would be permitted barring contractual stipulations to the contrary....but then again, this raises issues of privity. Not sure on the AMC point though. Can you please elaborate a bit more? ThanksShamnad Basheerhttp://www.blogger.com/profile/07152989743112178836noreply@blogger.comtag:blogger.com,1999:blog-17664472.post-90165403344542869752013-01-23T09:25:45.579+05:302013-01-23T09:25:45.579+05:30Sorry Shamnad.. forgot to add my name to the last ...Sorry Shamnad.. forgot to add my name to the last comment @7.52 AM<br /><br />Does not take away from my interest in your viewpoint on this issue - whether a second sale in a garage/front law/jumble/to a kabadiwala etc. would be impacted by the principles that govern exhaustion? <br />And if they would be - are they practically enforceable!!!<br /><br />Or do the principles of exhaustion apply only to a second sale for a purely commercial purpose such as re-export for sale in bulk?<br /><br />In patents and in the Indian context, this would also extend to &quot;repair&quot; that we have people carry out without the express authorisation of the seller of the product.<br /><br />Another interesting point - would my refusal to take out an AMC with the seller of a product and this being treated by the seller as a waiver of warranty also result in a waiver of trademark/patent rights by the seller.<br /><br />Cheers!!<br /><br />Guru NatarajAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-17664472.post-40383593242735890892013-01-23T08:01:56.257+05:302013-01-23T08:01:56.257+05:30Shamnad.. would be interested in your viewpoint on...Shamnad.. would be interested in your viewpoint on exhaustion vs. the right to hold garage sales/christmas basement sales that is common in the West, or even our desi version of recycling by selling to the local kabadiwala for reuse??Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-17664472.post-86839216854790156262013-01-22T22:52:53.922+05:302013-01-22T22:52:53.922+05:30Ok, a related question is why we need trademark la...Ok, a related question is why we need trademark law to regulate the second sale of goods at all, then. Essentially, international exhaustion gives the re-seller the right to freely sell at any price, whereas national exhaustion lets the trademark owner regulate the re-seller&#39;s price.<br />Why should trademark law get into these questions?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-17664472.post-21277365015846516542013-01-22T07:45:56.099+05:302013-01-22T07:45:56.099+05:30Thats a great question Anon. As I understand it, a...Thats a great question Anon. As I understand it, a great number of these luxury goods sell at the same price in India, as they do in the US/EU. In which case, the likelihood of price arbitrage or that of a market for parallel imports is rather minimal, no? i&#39;ve in fact noticed that in many cases, some of the imported brands (in India) cost more than they do in the US/EU.<br />Shamnad Basheerhttp://www.blogger.com/profile/07152989743112178836noreply@blogger.comtag:blogger.com,1999:blog-17664472.post-58740910995581107902013-01-20T13:32:36.999+05:302013-01-20T13:32:36.999+05:30Do you think there is some justification for stick...Do you think there is some justification for sticking to national exhaustion in the case of luxury goods? <br /><br />In the case of luxury goods, lower prices actually adversely affect the reputation of the mark, which is what tradeamark law seeks to protect.<br /><br />Can there be a &quot;carving -out&quot; of sorts for this particular category of goods?Anonymousnoreply@blogger.com